' By this petition filed under Article 201 of the Interim Constitution of Pakistan, 1972 the petitioner seeks to challenge the orders dated 27th June, 1972 and 1st July, 1972 passed by respondent No.1 as being without lawful authority and that the respondents be restrained from enforcing the same.
2. The facts giving rise to this petition, briefly stated, are as under:-
3. Respondent No.1 is the "specified authority" constituted under the Pakistan Essential Services (Maintenance) Rules, 1962 (hereinafter referred to as the said Rules) which have been made under section 6 of the Pakistan Essential Services (Maintenance) Act, 1952 (hereinafter referred to as the said Act). The said respondent vide his letter dated 27-6-1972 addressed to the petitioner directed that all Class-II Officers of the petitioner (State Bank of Pakistan) be treated as workmen as defined in the Industrial Relations Ordinance, 1969 without issuing any notice and holding any formal inquiry. On the same day respondent No.1 also addressed a letter to the petitioner that he had taken cognizance of the industrial dispute subsisting between the petitioner and respondents No.6 and 7 under the provisions of the said Act and intimated that the issues specified therein were going to be dealt with by him on 1-7-1972. The petitioner submitted a reply dated 30-6-1972 to respondent No.1 challenging the competence of respondent No.1 to determine the said issues by him. Notwithstanding the objections, respondent No. 1 passed an orders dated 1-7-1972. Both these orders dated 27-6-1972 and 1-7-1972 have been challenged in this petition, as being passed without any lawful authority and the same are liable to be quashed.
4.
I have heard Mr. Khalid Anwar, learned counsel for the petitioner, Mr. Hassan A.Shaikh, learned counsel for respondents 2 to 6 and Mr. Shahenshah Hussain, learned counsel for respondent No.7.
5.
Learned counsel for the petitioner raised a number of contentions: firstly, that the order 27th June, 1972 passed by respondent No.1 does not amount to regulate the wages and other conditions of services of the employees in question. Alternatively, even if it is assumed that the said order was of a regulatory nature, it was passed without giving an opportunity to the petitioner to place its views before respondent No.1 and as such the said order has been passed in violation of the principle of natural justice. Secondly, the said order resulting in the increase of wages has been passed without obtaining the previous sanction in writing of the Central Government. Thirdly, in any case, -Grade II officers of the petitioner could not be treatred as workmen as defined in clause xxxviii of section 2 of the Industrial Disputes Ordinance, 1969, and lastly the order dated 1-7-1972 is completely outside the scope of the power and competence of respondent No.1.
6. The deal with the first two contentions of the learned counsel for the petitioner, it will be convenient if the relevant provisions of the Act and rules (as enforced at the relevant time) are first quoted. They read as under:- "Section 6. Regulation of wages and conditions of service.--(1) The Central Government may make rules regulating or empowering a specified authority to regulate the wages and other conditions of service of persons or of any class of persons engaged in any employment or class of employment declared under section 3 to be an employment of class of employment to which this Act applies.
(2) When any such rules have been made or when any directions regulating wages or conditions of service have been given by an authority empowered by such rules to give them, any person failing to comply therewith is guilty of an offence under this Act.
7.....................
7-A. The provisions of this Act shall have effect, notwithstanding anything to the contrary contained in the Trade Unions Act, 1926 (XVI of 1926) or the Industrial Disputes Ordinance, 1959 (LVI of 1959) or any other law."
"Rule 3. (1) The Central Labour Commissioner is hereby empowered to regulate, subject to the other provisions of this rule, the wages and other conditions of service of persons of class of persons engaged in any employment or class of employment to which these rules apply.
(2) In regulating the wages and other conditions of service under sub-rule (1), the Central Labour Commissioner shall not---
(a) prescribe any terms or conditions without taking into consideration the views of the employers of the persons concerned, or the representatives of such employers and the persons, except where such views are not received within the time fixed by the Central Labour Commissioner for that purpose;
(b) prescribe any such terms or conditions as may affect adversely the rights to which a person is entitled immediately before the publication of these rules, by virtue of any law, or under the terms of any award, agreement or contract duly made and operative;
(e) specify, without the previous sanction in writing of the Central Government the wages or allowances of any persons in respect of whom a dispute exists with the employers; or
(d) specify, without the previous sanction in writing of the Central Government any condition on which the employment of any person may be terminated.
(3) All directions of the Central Labour Commissioner, regulating wages and other conditions of service under sub-rule (1) shall be published in the official Gazette."
7. The word 'regulate' as appears in section 6(1) of the Act has been considered by Honourable Supreme Court in the case of Karachi Electric Supply Corporation v. National Industrial Relations Commission and another PLD 1982 SC
113. It was observed in the said judgment that the word 'regulate' is synonymous with the word 'control' or 'govern'. "Accordingly in ordinary parlance it emplies the right to prescribe and enforce all such proper and reasonable rules as may be deemed necessry and wholesome in conducting an avocation in a proper and ordinary manner. This seems to be the proper meaning to be given to this word in the context of guideline as used in section 6(1) of the Act and rule 3(1) of the Rules of 1962."
8. The Honourable Supreme Court while delivering the above opinion as to the definition of the word 'regulate' approved the judgment of this Court in Constitutional Petition No.146/1980 Pakistan Electrical and Mechanical Constructors Ltd. v. The Chairman, N. I. R. C. and another 1984 PLC (C. S.) 325 in which the word 'regulate' has been construed as not to include adjudication of a dispute by the 'specified authority'.
9. The controversy now boils down to this whether respondent No.1, while passing order dated 27-6-1972 under the provisions of the Act and Rules, quoted above, was acting within the meaning of the word 'regulation' or 'adjudication'.
10. To appreciate the point it will be advantageous to reproduce the impugned order dated 27-6- 1972 which reads as under:- "Directions of Mr. Muhammad Khan Junejo, PCS., Director of Labour Sind and Central Labour Commissioner in the dispute between State Bank of Pakistan and SBP Officers (Class II) Association under section 6 of the Essential Services (Maintenance) Act, 1952 read with rule 3 of Essential Services (Maintenance) Rules, 1962.
Parties present:
(1) State Bank of Pakistan through Mr.I.H.Qarni, Director Administration and Mrs. Nigar Hussain, Law Officer.
(2) State Bank of Pakistan Officers (Class II) Association, Karachi, through M/s. Imtiaz Ahmed Usmani and Farhat Saeed, President and General Secretary respectively of the Association.
' I, Muhammad Khan Junejo, P. C. S., Director of Labour, Government of Sind, and Central Labour Commissioner being empowered under section 6 read with rule 3 of Essential Service (Maintenance) Rules, 1962 after hearing both the parties viz., Management of State Bank of Pakistan represented by Mr.I.H. Qarni and Mrs. Nigar Hussain, Law Officer and State Bank of Pakistan Officers (Class II) Association represented by M/s. Imtiaz Ahmed Usmani and Farhat Saeed to hereby direct that all the Class II Officers of the State Bank of Pakistan are to be treated as "workmen" as defined in the Industrial Relations Ordinance, 1969 as amended.
Sd/- (Muhammad Khan Junejo)
P. C.S. Karachi dated Director Labour, Govt. of the 27th June, 1972. Sind, Karachi."
11. Looking to the nature of the above order or direction it can easily be concluded that Respondent No.1, while issuing the direction as contained in the impugned letter/order dated 27th June, 1972, quoted above, was concerned with the question of regulating the terms and conditions of a class of the employees of the petitioner. He, thus, ruled that Grade-II Officers of the petitioner will be treated as workmen as defined in the Industrial Relations Ordinance, 1969. The only embargo put on the exercise of such power under sub-rule (2) of rule 3 of he Rules is that respondent No.1 shall not prescribe any terms and conditions of service without taking into consideration the views of the employers and the employees except where such views are not received within the time fixed by him. In the case before me, as is manifest from the impugned order itself, the order has been passed after hearing the petitioner which implies that the views of the petitioner expressed in the meeting were taken into consideration, it is nowhere provided in this sub-rule that a formal notice or intimation inviting views of the employer or the employees will be issued and then a date for their consideration will be fixed. Since the Act is intended to maintain the essential services, the views may be ascertained during the course of meeting where the matter is being considered so as to regulate the wages or conditions of service of Grade II Officers of the petitioner's bank. It cannot, therefore, be said that Respondent No.1, prescribed any condition of service without taking into consideration the views of the petitioner. So the first contention as advanced by Mr. Khalid Anwa has no force. The direction of Respondent No.1 as contained in his letter/order dated 27-6-1972 lays down general regulation under section 6 of the Act read with rule 3(a) of the Rules, as to the conditions of service of Grade II Officers of the petitioner, which is perfectly legali and no principle of natural justice has been violated in passing the said order by Respondent No.1. .12. In support of his second contention, Mr.Khalid Anwar submitted that as a result of the said direction of treating the Grade II Officers to be the workmen as defined in the Industrial Dispute Ordinance, 1969, their wages have increased and this could not be done by Respondent No.1 without first obtaining sanction of the Central Govern ment which has not been obtained. This contention which, I must say, B was argued half-heartedly, equally has no force. No provision of law or the rules or other material was referred to or placed before me so as to support the contention that the impugned order referred to above has resulted in the increase of wages and allowances to the said Grade II Officers and has thereby contravened the provision of rule 3(2) of the rules.
13. As regards the third contention that Grade II Officers of the petitioner/Bank could not be treated as workmen it is convenient to reproduce clause (xxviii) of section 2 of the Industrial Relations Ordinance, 1968 which defines "workman" as under: "(xxviii) "Worker" and "workman" means any person not falling within the definition of employer who is employed (including) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be express or implied, and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid-off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment,' lay-off, or removal has led to that dispute but does not include any person--
(a) who is employed mainly in a managerial or administrative capacity, or
(b) who, being employed in a supervisory capacity draws wages exceeding rupees eight hundred per mensem or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of managerial nature."
14. In support of the above contention Mr.Khalid Anwar submitted that the Grade II Officers treated as workmen by respondent No.1 are employed mainly in managerial and administrative capacity.
Alternatively, he submitted that in any case they are employed in supervisory capacity drawing wages exceeding Rs.800 per month.
15. Mr. Hassan A. Shaikh, learned counsel for respondents Nos.2 to 6 produced a copy of the State Bank of Pakistan (Staff) Regulations which, according to him, were in force at the relevant time. The relevant regulations as to wages pertains to the officers in Class II namely, Junior Accountants, Legal Assistants, Research Assistants, statistical Assistants, Deputy Treasurer, Personal Assistant to the Governor and Security Officer. None of them has been shown to be holding mainly a managerial or administrative post or employed in supervisory capacity drawing wages exceeding Rs.800 at that time. The various pay Scales as shown in the Regulation start from Rs.350 and Rs.450 with maximum salary upto Rs.800 only. In any case, no plea has been taken in the petition that the Class-II Officers have been employed in supervisory capacity.
16. Learned counsel for respondents No.2 to 6 relied on two cases reported as Dost Muhammad Cotton Mills Ltd. v. Muhammad Abdul Ghani and others PLD 1975 Kar. 342 and Pak News Ltd. v. Sind Labour Court No.2, Karachi PLD 1976 Kar. 73 that they are workmen as defined in the Industrial Relations Ordinance, 1969. In any case, learned counsel for the petitioner has not been able to poin out any material on record that Grade-II Officers treated as workmen under Industrial Relations Ordinance, 1969 were employed mainly in the managerial or administrative capacity or were acting in supervisory capacity drawing wages exceeding Rs.800 per month. This contention, therefore, too fails.
17. To appreciate the last contention as raised on behalf of the petitioner, reference may be made to the majority view of the Full Bench judgment of this Court as expressed in Pakistan Burmah-Shell Ltd. v. Central Labour Commission and others PLD 1982 Kar. 33 according to which the term "regulate" used in section 6 of the Act read with rule 3 of the Rules does not confer power on the specified authority to adjudicate upon any individual grievance. In this respect, it may be advantageous to quote few extracts from the said majority judgment, which read as under:-- "The reading of these rules could seem to indicate that the power conferred by sub-rule (2) of rule 3 relates only to the doing of an act touching generally the terms and conditions of service of a class or category of persons. Additionally the reading of these rules does not even by implication confer a power to the Commissioner to settle individual grievances.....................................
"We are clearly of the view that since the Act and rules do not make any provisions for redress of individual grievances the Commissioner could not adjudicate in any matters of this nature."
18. In order to examine the validity of the order dated 1-7-1972 of respondent No.1, it is to be seen whether it comes within the purview of regulation or adjudication, because if it relates to adjudication, the order is to be struck down as respondent No.1 is not empowered to adjudicate the dispute, as also approved by the Supreme Court in the case reported as Karachi Electric Supply Corporation Ltd. v. National Industrial Relations Commission PLD 1982 SC 113, referred to above.
The said order/direction dated 1-7-1972 is reproduced below:- "Directions of Mr. Muhammad Khan Junejo, P C S., Central Labour Commissioner in the dispute between the State Bank of Pakistan, State Bank of Pakistan Employees Union and State Bank of Pakistan Officers Class-II Association under section 6 of the Pakistan Essential Services (Maintenance) Act, 1952 read with rule 3 of the Pakistan Essential Services (Maintenance) Rules, 1962.
' On 27-6-1972, I heard the parties. Both the parties put in written representation. I have already given directions for considering Class-II Officers as workmen. The following four issues are under consideration:-
(1) Reinstatement of Mr. Aziz Sheikh, Mr. Anwar Khan, Mr. Mahmood Ali Iqbal and Mr. Abdul Wahab.
(2) Withdrawal of memos issued to officers Class II in 1970.
(3) Decision about the sureties given by employees on behalf of East Pakistan Employees of the Bank.
(4) Victimization on account of present situation.
As the situation is tense, I am giving this award today and the detailed order giving the reasons will be communicated to the parties later on.
(1) I direct re-instatement of Mr. Aziz Sheikh, with full benefit of service excepting his pay and other emoluments during the period he was out of service of the State Bank. He is not entitled to emoluments because he has been working elsewhere and emoluments drawn by him from outside the Bank during this period, are more than he is entitled in the Bank.
(2) Mr. Mahmood Ali Iqbal and Anwar Khan are directed to be re-instated forthwith as their cases are covered by the Governor's directive dated 6-1-1972. They will be entitled to emoluments with effect from 6-1-1972.
(3) Mr. Abdul Wahab will be considered for re-appointment with immediate efect.
' I direct that memos. issued to officer Class II in 1970 should be withdrawn immediately as they have not been followed by any charge-sheets or any enquiry and has no justification.
' I also direct that the deductions from the pay of the employees in respect of sureties for East Pakistan employees should be suspended for 3 months and in the meantime the gratuity and ' Provident Fund Account of the East Pakistan employees who have taken loans should be seized and the Government will be moved for deciding this policy matter.
' As regards the strike period, some of the employees were absent on 26 and 27-6-1972. Both these days should be considered as leave admissible under the rules and no action is warranted in the matter.
' The grounds for these directions will be communicated in detailed order.
Sd/- (Muhammad Khan Junejo) P. C. S., Director of Labour, Sind, Karachi. 1-7-1972."
19. The order relates to the four issues namely:-
(1) Re-instatement of Mr. Aziz Sheikh, Mr. Anwar Khan, Mr. Mahmood Ali Iqbal and Mr. Abdul Wahab.
(2) Withdrawal of memos issued to Officers Class II in 1970.
(3) Decision about the sureties given by employees on behalf of employees belonging to East Pakistan.
(4) In respect of victimisation on account of present situation.
20. In view of the two decisions of the Honourable Supreme Court, as referred to above, there can now be no cavil that the power to regulate does not mean or include the power to adjudicate.
Therefore, Mr. Hassan A. Shaikh Advocate for respondents Nos.2 to 6 and Mr. Shahenshah Hussain, Advocate for respondents Nos. 7 and 8, have conceded that respondent No.1 is not competent to adjudicate individual disputes. they, however, contended that the dispute referred to in the order dated 1-7-1972 passed by respondent No.1 was in the nature of general dispute to which its jurisdiction is not barred. The contention appears to be misconceived. No doubt, the majority view of this Court as held in PLD 1982 Kar. 33, just referred, bars the jurisdiction to adjudicate an individual dispute whereas the Supreme Court judgments PLD 1982 SC 113 is absolute in its terms inasmuch as it implies to bar the jurisdiction of respondent No.1 to adjudicate, without making any such distinction as put forth by the learned counsel for respondents Nos.2 to 8. As such I will hold that as per judgment of the Supreme Court, referred to above, which I am bound to follow, section 6 of the Act read with rule 3 of the Rules make no room for respondent No.1 to adjudicate a dispute whether individual or general. However, the four issues do not arise under the Act. The first issue relates to the re-instatement of four employees. These are individual disputes because each case of re-instatement stands on its own footing. Merely by grouping them in the demand of the union the dispute does not lose its individual character. Issue No.2 undoubtedly is of a general nature and so the issue No.4 but they do not come under the meaning of regulate or control as defined by the Full Bench of this Court and the Honourable Supreme Court. Issue No.3 for its very nature, has nothing to do with the power of respondent No.1 in laying down conditions of service of the employees of the petitioner. The rights and obligations of the employees becoming sureties in respect of the employees belonging to East Pakistan in matters of loans for house-building or motor cycle advances are to be governed by the law of contract which has nothing to do with the terms and conditions of employment of the petitioner bank to be regulated by respondent No.1 in accordance with section 6 of the Pakistan Essential Services (Maintenance) Act, 1952 read with rule 3 of the Pakistan Essential Services (Maintenance) Rules, 1962. Thus, all the four issues in question do not fall within the purview of the Act and as such no directions could be issued under it, as they amount to adjudication of dispute or disputes, which is barred under the Act and the Rules made thereunder.
21. The upshot of the above discussion is that respondent No.1 while issuing his direction, contained in his order dated 27-6-1972, was acting within the provisions of Act and rules and performing his duty in laying down the general terms and conditions of services with regard to a class of employment i.e. Grade-II Officers of the State Bank of Pakistan, the petitioner. But as regards directions contained in his order dated 1-7-1972, he acted in excess of authority and jurisdic tion as vested in him by section 6 of the Pakistan Essential Services (Maintenance) Act, 1952 read with rule 3 of the Essential Services (Maintenance) Rules, 1962. The last order dated 1-7-1972 is, therefore, declared as passed without lawful authority and of no legal effect. Respondent No.1 is, thus, restrained from enforcing the same.
22. In the result, the petition is partly allowed to the extent stated above but, in the circumstances, there will be no order as to costs.